In Which We Seek to Intervene in the Google Books Settlement

Monday, April 13th, 2009 by Harry Lewis

I previously blogged about the peculiar state of orphaned works under the proposed Google Books settlement. I have now joined with Lewis Hyde and the Open Access Trust (see below for an explanation) in asking the judge who must rule on the proposed settlement to allow our concerns to be heard. The letter speaks for itself so I simply include it below. Stay tuned.

Pursuant to your Individual Practice 2(A), we write to request a pre-motion conference in¬†¬†Authors Guild v. Google.¬† We seek to file a motion for leave to intervene on behalf of Lewis ¬†Hyde, Harry Lewis, and Open Access Trust Inc., a Massachusetts nonprofit corporation ¬†dedicated to promoting access to knowledge, worldwide.

We also seek to file motions for our counsel, K.A.D. Camara of Camara & Sibley LLP¬†¬†and Charles Nesson of Harvard Law School to appear pro hac vice in association with Nathan Z. ¬†Dershowitz, a member of the bar of this Court.

Lewis Hyde, Harry Lewis, and the Open Access Trust represent the community of¬†¬†readers, scholars, and teachers who use orphaned works.¬† Orphaned works are works under ¬†copyright, but with a copyright holder who has died, cannot be found, or otherwise has ¬†abandoned his work.¬† In the status quo, users like us and commercial users like Google can and ¬†do use orphaned works, although we do so against a backdrop of potential legal liability should ¬†the owner of an orphaned work later emerge.

The parties in this case propose to change this status quo by clarifying that the use of¬†¬†orphaned works is, indeed, actionable copyright infringement; vesting in Google a monopoly in ¬†the lawful use of orphaned works; and dividing between themselves the proceeds of this ¬†monopoly.¬† The Authors and Publishers, with Google‚Äôs consent, purport to represent a class of ¬†copyright holders that includes the owners of orphaned works, even though neither the Authors ¬†nor the Publishers are such owners.¬† Having turned the Authors and Publishers into legal ¬†representatives of the owners of orphaned works, Google will buy from these representatives a ¬†global license.

The proposed settlement will make Google the only company in the world with a license¬†¬†to use orphaned works.¬† No other company will be able to buy a similar license because, outside ¬†the context of the proposed class-action settlement in this case, there is no one from whom to buy ¬†such a license.¬† The Authors and Publishers join in this scheme because Google proposes to ¬†divide with them, pursuant to the proposed settlement agreement, the revenue that the orphaned ¬†works will generate.¬† The settling parties plot a cartel in orphaned works.

We seek intervention to defend our interest in orphaned works ‚Äî to defend the public¬†¬†domain‚Äôs claim to free, fair use.¬† The purpose of copyright is to promote authorship and learning. ¬†¬†Copyright does this by giving authors exclusive rights for limited times so that authors can profit ¬†from their writing by selling licenses to others.¬† This mechanism breaks down in the case of ¬†orphaned works because, with respect to these works, there is no one from whom to buy a ¬†license.¬† The public can buy no license; the author can reap no reward.¬† Because exclusive rights ¬†in orphaned works do not serve the ultimate purpose of copyright, the public domain has a claim¬†to free, fair use of orphaned works.

We have the right to intervene to present the public domain‚Äôs claim to free, fair use of¬†orphaned works.¬† None of the present parties will present our claim.¬† It is inconsistent with the¬†settlement they propose.¬† If the use of orphaned works is free and fair, then there is no exclusive¬†license to give Google and no claim on the part of Google, the Authors, and the Publishers to the¬†proceeds of that exclusive license.¬† We must press our claim in this case because it is only in this¬†case that there is a party that purports to represent the owners of orphaned works with whom we,¬†like Google, can negotiate.¬† Our interest in orphaned works, put in jeopardy by the proposed¬†settlement and adverse to the interests of the settling parties, gives us the right to intervene under¬†Rule 24.

Our request to intervene is timely.¬† It comes shortly after the terms of the proposed¬†settlement became public and made our interest concrete.¬† And it comes well before the June 11,¬†2009, fairness hearing on approval of the settlement.¬† The settling parties claim that class notice¬†was mailed on January 5, although many authors did not receive notice until much later.¬† Lewis¬†Hyde, for example, received notice by mail dated February 20.¬† Our intervention comes, at most,¬†three months after notice.

We believe that the proposed settlement worked out by Google, the Authors, and the¬†Publishers is a landmark achievement and an historic event.¬† But the settlement currently¬†proposed cannot be approved because it does not respect the interest of the public domain in the¬†free, fair use of orphaned works or the revenue that these works will generate ‚Äî nor was it¬†arrived at through a process in which that interest was represented.¬† We think that this case and¬†the constitutional issues of national moment that it presents will be better resolved if the public¬†domain has a seat at the table.

Lewis Hyde is Richard L. Thomas Professor of Creative Writing at Kenyon College and¬†was formerly director of the creative-writing program at Harvard University.¬† Harry Lewis is¬†Gordon McKay Professor of Computer Science at Harvard University and was formerly Dean of¬†Harvard College.¬† Open Access Trust Inc. is a Massachusetts charitable corporation dedicated to¬†the creation, encouragement, and maintenance of institutions that serve the goal of open access to¬†knowledge, worldwide.

We respectfully request leave to file our motion to intervene and motions for leave for¬†our counsel, K.A.D. Camara and Charles R. Nesson, to appear pro hac vice, in association with¬†Nathan Z. Dershowitz, a member of the bar of this Court.

I am a SF civil rights attorney. On April l6th I will do a seminar at Golden Gate University on the Google Book Settlement sponsored by California Lawyers for the Arts.
I think the real issue raised by Mr.Lewis and his associates is a monopoly anti-trust issue that will have to be raised with the US and foreign competition agencies in years to come.
I am very dubious about the numbers and scope of orphan rights. A better idea of these will be known after the Jan.2010 claims window closes. If these works were published since l923 and registered copyrights, we know the authors name, publishers and the copyright registration forms in Wash.D C shows an address. The publishers can be traced to current media companies. The authors and their families can be traced via the internet missing person searches and/or the Mormon Church genealogy data bases. This is work for the Registry. If I were an independent director of the Registry I would work to track these owners down.
The intervenors suggest that the Settlement gives Google exclusive rights to e-publish and this is just not true. The settlement only gives Google non-exclusive e-publishing rights to works on the shelves in the scanned libraries(Iowa, California, Michigan,Stanford,etc) that were also registered US Copyrighted books.These terms were all narrowly defined in the lengthy settlement agreement.
I am not affiliated with any parties to the case or the settlement. I have represented many authors and their heirs since l972, and I do not agree with the intervenors that the public has a right to free unlimited use of published copyrighted works,orphans or otherwise. I think authors and their families have the right to be compensated for their work, just like any other worker, and the Google Book Settlement provides a framework towards that end.
Jerome Garchik, S.F. Attorneyjchikesq@gmail.com

my friend and colleague eric saltzman offered the following to me, which lays out a clear logic for intervention:

A. During the period of copyright, rightsholders are the beneficiaries of rights conferred by the Copyright Act, including the right to receive all compensation from exploitation of the work. The successor beneficiaries (for the period when the work enters the public domain) are the public. This is an identical structure to a trust holding assets for the benefit of primary beneficiaries and successor beneficiaries. In this situation, the passing of rights to our successor beneficiaries is inevitable (not true in all trusts with possible successors).

B. Depending on its terms, a trust may or may not permit depletion or alienation of the trust assets prior to their (potential) passing to successor beneficiaries. In copyright, the terms of the Copyright Act do not permit alienation of the successor‚Äôs rights; i.e., the works must pass into the public domain.

C. If the trust assets produced income and the primary beneficiaries were either deceased or could not be located, the trustees or successor beneficiaries (or the state) would apply to the surrogates court for instructions as to what to do with the income — even if trust‚Äôs terms provided for distribution of all income to the primary beneficiaries. If there were no trustees, the Surrogate could appoint one. The best argument and most likely result is that the income would be distributed to the successor beneficiaries of the trust assets in such a way as to most closely fulfill the goals of the trust.

D. In the case before the Court, the successor beneficiary class is the public and the goal of the ‚Äútrust‚Äù (i.e., Copyright Act) is to secure for the public the benefits derived from the author’s labors (including some of the ‚Äúaccess to knowledge‚Äù arguments you make). These benefits normally mean the right to use and exploit the work forever, but this goal can also be furthered (as you say) by use of the unclaimed revenues generated during the first trust (i.e., copyright) period.

E. There is no other entity or group who is a more natural recipient of this ‚Äúresidual‚Äù income, nor whose interest is more aligned with the purposes of the ‚Äútrust‚Äù (i.e., Copyright Act) than the public (the sole beneficiary of the ‚Äúpublic domain‚Äù successor period) and none who is without significant conflict with the interests of the successor beneficiary. It would not be difficult for the Court to hear and evaluate proposals from a trustee (or someone similarly situated, even if not formally appointed as ‚Äútrustee‚Äù) as to how this income should be spent.

[...] The Internet Archive is the second group that has asked the court to intervene. The first, spearheaded by a group of lawyers that includes Charles Nesson, a professor at Harvard Law School, has published its filing here. [...]

While you oppose Google books, I feel there is a stronger case for the crowd-sourcing carried out by Google in its Translation schemes.
Google requests users to propose a better translation and very often we do. However this translation (which is tantamount to providing a service to Google in the shape of a consultancy) is used by Google in all probability to better its translation engine and earn revenues on it through ads.
We have no objection to free crowd sourcing: the full Wiki is a magnificent example of cooperative human behaviour to create a knowledge base for non-profit uses. As an Open Source User I feel very strongly about this and wonder if there is any remedy legal or otherwise for the same. I used to provide a lot of corrective translations till I realised that although it benefits the public at large it also does Google. At least Google should put a disclaimer that the data provided will be used in all proability to better its engine and that such data may eventually be used for generating ads.
I hope this tangential comment will spark off soem response.

[...] The Internet Archive is the second group that has asked the court to intervene. The first, spearheaded by a group of lawyers that includes Charles Nesson, a professor at Harvard Law School, has published its filing here. [...]

Is there a misunderstanding here? The settlement only gives Google non-exclusive e-publishing rights to works on the shelves in the scanned libraries(Iowa, California, Michigan,Stanford,etc) that were also registered US Copyrighted books.These terms were all narrowly defined in the lengthy settlement agreement.

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